exv10w2






Exhibit 10.2




STILLWATER MINING COMPANY

2004 EQUITY INCENTIVE PLAN

(As Amended and Restated February 21, 2008)




     SECTION 1. Purposes. The purposes of this Stillwater Mining Company 2004 Equity
Incentive Plan, as may be amended from time to time (the “Plan”), are to promote the interests of
Stillwater Mining Company and its stockholders by (i) attracting and retaining personnel, including
executive and other key employees, consultants, and directors of the Company and its Affiliates, as
defined below, (ii) motivating such employees by means of performance-related incentives to achieve
longer-range performance goals, (iii) enabling such employees, consultants and directors to
participate in the long-term growth and financial success of the Company, and (iv) to permit the
payment of compensation that qualifies as performance-based compensation under Section 162(m) of
the Code. Notwithstanding any provision of the Plan, to the extent that any Award would be subject
to Section 409A of the Code, no such Award may be granted if it would fail to comply with the
requirements set forth in Section 409A of the Code and any regulations or guidance promulgated
thereunder.



     SECTION 2. Definitions. As used in the Plan, the following terms shall have the
meanings set forth below:



     “Affiliate” shall mean any entity that, directly or indirectly, is controlled by the Company
for purposes of Section 409A of the Code.



     “Alternative Award” shall mean an Award granted in tandem with, either at the same or a later
time as, another Award having substantially similar economic characteristics, the exercise of which
would result in the cancellation of such other Award.



     “Award” shall mean any Option, Stock Appreciation Right, Restricted Stock, or Other
Stock-Based Award.



     “Award Agreement” shall mean any written agreement, contract, or other instrument or document
evidencing any Award, which may, but need not, be executed or acknowledged by a Participant.



     “Board” shall mean the Board of Directors of the Company.



     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     “Committee” shall mean (i) the Board, or (ii) a Committee of the Board designated by the Board
to administer the Plan and composed of not less than the minimum number of Persons from time to
time required by Rule 16b-3, each of whom, to the extent necessary to comply with 16b-3 only, is a
“Non-Employee Director” within the meaning of Rule 16b-3(b)(3)(i).



     “Company” shall mean Stillwater Mining Company, together with any successor thereto.



 









 





     “Consultant” shall mean any Person who is engaged by the Company or any Affiliate to render
consulting or advisory services as an independent contractor and is compensated for such services.



     “Covered Employee” shall have the meaning set forth in Section 162(m)(3) of the Code.



     “Employee” shall mean any employee of the Company or of any Affiliate.



     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.



     “Fair Market Value” means, with respect to Shares or other property, the fair market value of
such Shares or other property determined by such methods or procedures as shall be established from
time to time by the Committee. Unless otherwise determined by the Committee in good faith, the
Fair Market Value of a Share as of a particular date shall mean, (i) the closing sales price of a
Share on the national securities exchange on which the Share is principally traded, for the last
preceding date on which there was a sale of such Share on such exchange, or (ii) if the Shares are
then traded in an over-the-counter market, the average of the closing bid and asked prices for the
Shares in such over-the-counter market for the last preceding date on which there was a sale of
such Shares in such market, or if the Shares are not then listed on a national securities exchange
or traded in an over-the-counter market, such value as the Committee, in its sole discretion, shall
determine in good faith.



     “Incentive Stock Option” shall mean an Option granted under Section 6(a) of the Plan that is
intended to meet the requirements of Section 422 of the Code or any successor provision thereto.



     “Non-Employee Director” (i) shall have the meaning set forth in Rule 16b-3(b)(3)(i) of the
Exchange Act, or any successor provision thereto, for purposes of the definition of “Committee” set
forth in the Plan, and (ii) shall mean a director who is not an Employee of the Company for all
other purposes, including, but not limited to, Section 6(a)(iv) of the Plan.



     “Non-Qualified Stock Option” shall mean an Option granted under Section 6(a) of the Plan that
is not intended to be an Incentive Stock Option.



     “Option” shall mean an Incentive Stock Option or a Non-Qualified Stock Option.



     “Other Stock-Based Award” shall mean any right granted under Section 6(d) of the Plan.



     “Participant” shall mean any Employee, Non-Employee Director or Consultant selected by the
Committee to receive an Award under the Plan.



     “Performance Goals” shall mean performance goals based on one or more of the following
criteria: (i) earnings including operating income, earnings before or after taxes, earnings before
or after interest, depreciation, amortization, or extraordinary or special items or book value per
share (which may exclude nonrecurring items); (ii) pre-tax income or after-tax income; (iii)
earnings per common share (basic or diluted); (iv) operating profit; (v) revenue, revenue growth or
rate of revenue growth; (vi) return on assets (gross or net), return on



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investment, return on capital, or return on equity; (vii) returns on sales or revenues; (viii)
operating expenses; (ix) stock price appreciation; (x) cash flow, free cash flow, cash flow return
on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of
cost of capital; (xi) implementation or completion of critical projects or processes; (xii)
economic value created; (xiii) cumulative earnings per share growth; (xiv) operating margin or
profit margin; (xv) common stock price or total stockholder return; (xvi) cost targets, reductions
and savings, productivity and efficiencies; (xvii) strategic business criteria, consisting of one
or more objectives based on meeting specified market penetration, geographic business expansion,
customer satisfaction, employee satisfaction, human resources management, supervision of
litigation, information technology, and goals relating to acquisitions, divestitures, joint
ventures and similar transactions, and budget comparisons; (xviii) personal professional
objectives, including any of the foregoing performance goals, the implementation of policies and
plans, the negotiation of transactions, the development of long term business goals, formation of
joint ventures, research or development collaborations, and the completion of other corporate
transactions; and (xix) any combination of, or a specified increase in, any of the foregoing.
Where applicable, the Performance Goals may be expressed in terms of attaining a specified level of
the particular criteria or the attainment of a percentage increase or decrease in the particular
criteria, and may be applied to one or more of the Company, a Subsidiary or Affiliate, or a
division or strategic business unit of the Company, or may be applied to the performance of the
Company relative to a market index, a group of other companies or a combination thereof, all as
determined by the Committee. The Performance Goals may include a threshold level of performance
below which no payment will be made (or no vesting will occur), levels of performance at which
specified payments will be made (or specified vesting will occur), and a maximum level of
performance above which no additional payment will be made (or at which full vesting will occur).
Each of the foregoing Performance Goals shall be determined in accordance with generally accepted
accounting principles and shall be subject to certification by the Committee; provided that the
Committee shall have the authority to make equitable adjustments to the Performance Goals in
recognition of unusual or non-recurring events affecting the Company or any Subsidiary or Affiliate
or the financial statements of the Company or any Subsidiary or Affiliate, in response to changes
in applicable laws or regulations, or to account for items of gain, loss or expense determined to
be extraordinary or unusual in nature or infrequent in occurrence or related to the disposal of a
segment of a business or related to a change in accounting principles.



     “Person” shall mean any individual, corporation, partnership, association, joint-stock
company, trust, unincorporated organization, government or political subdivision thereof or other
entity.



     “Restricted Period” shall mean the period of time selected by the Committee (as may be amended
by the Committee from time to time) during which a grant of Restricted Stock may be forfeited to
the Company.



     “Restricted Stock” shall mean any Share granted under Section 6(c) of the Plan.



     “Rule 16b-3” shall mean Rule 16b-3 as promulgated by the SEC under the Exchange Act, or any
successor rule or regulation thereto as in effect from time to time.



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     “SEC” shall mean the Securities and Exchange Commission, or any successor thereto and shall
include the staff thereof.



     “Shares” shall mean the common shares of the Company, $0.01 par value, or, following an
adjustment under Section 4(c) of the Plan, such other securities or property as may become subject
to Awards in substitution for such common shares pursuant to such adjustment.



     “Stock Appreciation Right” shall mean any right granted under Section 6(b) of the Plan.



     “Subsidiary” means any corporation in an unbroken chain of corporations beginning with the
Company if, at the time of granting of an Award, each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.



     SECTION 3. Administration.



     (a) Authority of Committee. The Plan shall be administered by the Committee. In no
event, however, shall the Committee modify the distribution terms in any Award or Award Agreement
that has a feature for the deferral of compensation if such modification would result in taxes,
additional interest and/or penalties pursuant to Section 409A of the Code.. Subject to the terms of
the Plan and applicable law, and in addition to other express powers and authorizations conferred
on the Committee by the Plan, the Committee shall have full power and authority to: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to eligible Participants;
(iii) determine the number of Shares to be covered by, or with respect to which payments, rights,
or other matters are to be calculated in connection with, Awards; (iv) determine the terms and
conditions (including Performance Goals) of any Award; (v) determine Performance Goals no later
than such time as is required to ensure that an underlying Award which is intended to comply with
the requirements of Section 162(m) of the Code so complies; (vi) determine whether, to what extent,
and under what circumstances Awards may be settled or exercised in cash, Shares, other securities,
other Awards or other property, or cancelled, forfeited, or suspended and the method or methods by
which Awards may be settled, exercised, cancelled, forfeited, or suspended; (vii) determine
whether, to what extent, and under what circumstances cash, shares, other securities, other Awards,
other property, and other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee; (viii) interpret and
administer the Plan and any instrument or agreement relating to, or Award made under, the Plan;
(ix) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it
shall deem appropriate for the proper administration of the Plan; and (x) make any other
determination and take any other action that the Committee deems necessary or desirable for the
administration of the Plan.



     (b) Determinations Under the Plan. Unless otherwise expressly provided in the Plan all
designations, determinations, interpretations, and other decisions under or with respect to the
Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and
shall be final, conclusive, and binding upon all Persons, including the Company, any Affiliate, any
Participant, any holder or beneficiary of any Award, any shareholder and any Employee.



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     SECTION 4. Shares Available For Awards.



     (a) Shares Available. Subject to adjustment as provided in Section 4(c), the number of
Shares with respect to which Awards may be granted under the Plan shall be 5,250,000. If, after the
effective date of the Plan (as described in Section 9), any Shares covered by an Award granted
under the Plan, or to which such an Award relates, are forfeited, or if an Award otherwise
terminates or is cancelled without the delivery of Shares or of other consideration, then the
Shares covered by such Award, or to which such Award relates, or the number of Shares otherwise
counted against the aggregate number of Shares with respect to which Awards may be granted, to the
extent of any such forfeiture, termination or cancellation, shall again be, or shall become, to the
extent permissible under Rule 16b-3, Shares with respect to which Awards may be granted.



     (b) Annual Limit on Awards to an Individual. Subject to adjustment as provided in
Section 4(c), the number of Shares subject to Awards that are granted to any one individual in a
single calendar year may not exceed 250,000. Determinations made in respect of the limitation set
forth in the preceding sentence shall be made in a manner consistent with Section 162(m) of the
Code.



     For Incentive Stock Options granted under the Plan, the aggregate Fair Market Value
(determined as of the date of grant) of the number of whole Shares with respect to which Incentive
Stock Options are exercisable for the first time during any calendar year under all plans of the
Company shall not exceed $100,000, or such other amount as determined under Section 422 of the
Code.



     (c) Adjustments. In the event that the Committee determines that any dividend or other
distribution (whether in the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger, consolidation,
split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares such that an adjustment
is necessary in order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the Committee shall adjust any or all of (i) the
number of Shares or the kind of equity securities of the Company (or number and kind of other
securities or property) with respect to which Awards may be granted, both in the aggregate and in
one calendar year to an individual, (ii) the number of Shares or the kind of equity securities of
the Company (or number and kind of other securities or property) subject to outstanding Awards,
(iii) the grant or exercise price with respect to any Award or, if deemed appropriate, make
provision for a cash payment to the holder of an outstanding Award, and (iv) the Performance Goals;
provided, in each case, that with respect to Awards of Incentive Stock Options no such adjustment
shall be authorized to the extent that such authority would cause the Plan or the Awards of
Incentive Stock Options to fail to comply with Section 422 of the Code, as from time to time
amended and provided further, that the number of Shares subject to any Award denominated in Shares
shall always be a whole number, and provided further that no such adjustment shall cause any Award
hereunder which is or becomes subject to Section 409A of the Code to be considered a new Award or a
modification of such Award for purposes of Section 409A of the Code.



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     (d) Sources of Shares Deliverable For Awards. Any Shares delivered pursuant to an
Award may consist, in whole or in part, of authorized and unissued Shares or of treasure Shares.



     SECTION 5. Eligibility. Employees, Non-Employee Directors and Consultants of the
Company or any Affiliate shall be eligible to be designated as Participants.



     SECTION 6. Awards.



     (a) Options.




     (i) Grant. Subject to the provisions of the Plan, the Committee shall have
authority to determine the Participants to whom options shall be granted, the number of
Shares to be covered by each Option, the option price therefore and the conditions and
limitations applicable to the exercise of the Option. The Committee shall have the authority
to grant Incentive Stock Options, or to grant Non-Qualified Stock Options, or to grant both
types of options; provided, however, that Incentive Stock Options may only be granted to
Employees. In the case of Incentive Stock Options, the terms and conditions of such grants
shall be subject to, and comply with, the requirements of Section 422 of the Code, as from
time to time amended. Any Option or a portion thereof that is designated as an Incentive
Stock Option that for any reason fails to meet the requirements of an Incentive Stock Option
shall be treated hereunder as a Non-Qualified Stock Option.




     (ii) Exercise Price. The Committee shall establish the exercise price at the
time each Option is granted, which price shall not be less than 100% of the per share Fair
Market Value of the Shares on the date of grant. If an Employee owns or is deemed to own (by
reason of the attribution rules applicable under Section 424(d) of the Code) more than 10%
of the combined voting power of all classes of stock of the Company and an Incentive Stock
Option is granted to such Employee, the option price shall be no less than 110% of the Fair
Market Value of the Shares on the date of grant.




     (iii) Exercise. Each Option shall be exercisable at such times and subject to
such terms and conditions as the Committee may specify in the applicable Award Agreement or
thereafter. The Committee may impose such conditions with respect to the exercise of
Options, including without limitation, any relating to the application of Federal or state
securities laws, as it may deem necessary or advisable.



     (b) Stock Appreciation Rights.




     (i) Grant. Subject to the provisions of the Plan, the Committee shall have
authority to determine the Participants to whom Stock Appreciation Rights shall be granted,
the number of Shares to be covered by each Stock Appreciation Right Award, the grant price
thereof and the conditions and limitations applicable to the exercise thereof. A Stock
Appreciation Right may be granted in tandem with another Award, in addition to another
Award, or freestanding and unrelated to another Award. A stock Appreciation Right granted in
tandem with or in Addition to another Award may be granted either at the same time as such
other Award or at a later time. A Stock Appreciation Right shall not be exercisable earlier
than six months after grant, unless otherwise determined by the Committee, and shall have a per share grant price of not
less than 100% of the per share Fair Market Value of the Shares on the date of grant.




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     (ii) Exercise and Payment. A Stock Appreciation Right shall entitle the
Participant to receive with respect to each Share covered by such Stock Appreciation Right
an amount equal to the excess of the Fair Market Value of a Share on the date of exercise of
the Stock Appreciation Right over the per share grant price thereof, provided that the
Committee may, for administrative convenience, determine that the exercise of any Stock
Appreciation Right, which is not related to an Incentive Stock Option and which can only be
exercised for cash during limited periods of time in order to satisfy the conditions of
certain rules of the SEC, shall be deemed to occur for all purposes hereunder on the day
during such limited period on which the Fair Market Value of the Shares is the highest. Any
such determination by the Committee may be changed by the Committee from time to time and
may govern the exercise of Stock Appreciation Rights granted prior to such determination as
well as Stock Appreciation Rights thereafter granted.




     (iii) Other Terms and Conditions. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine, at or after the grant of a Stock
Appreciation Right, the term, methods of exercise, methods and form of settlement, and any
other terms and conditions of any Stock Appreciation Right. Any such determination by the
Committee may be changed by the Committee from time to time and may govern the exercise of
Stock Appreciation Rights granted or exercised prior to such determination as well as Stock
Appreciation Rights granted or exercised thereafter. The Committee may impose such
conditions or restrictions on the exercise of any Stock Appreciation Right as it shall deem
appropriate.



     (c) Restricted Stock.




     (i) Grant. Subject to the provisions of the Plan, the Committee shall have
authority to determine the Participants to whom Restricted Stock shall be granted, to each
such Participant, the duration of the Restricted Period during which, and the conditions
under which, the Restricted Stock may be forfeited to the Company, and the other terms and
conditions of such Awards. The vesting of a Restricted Stock Award granted under the Plan
may be conditioned upon the completion of a specified period of employment or service with
the Company or any Subsidiary or Affiliate, upon the attainment of specified Performance
Goals, and/or upon such other criteria as the Committee may determine in its sole
discretion. Unless otherwise determined by the Committee, Restricted Stock Awards shall
provide for the payment of dividends. Dividends paid on Restricted Stock may be paid
directly to the Participant and may be subject to risk of forfeiture and/or transfer
restrictions during any period established by the Committee, or may be reinvested in
additional Shares of Restricted Stock all as determined by the Committee in its discretion.




     (ii) Transfer Restrictions. During the Restricted Period, Restricted Stock
will be subject to the limitations on transfer as provided in Section 8(g)(iii).



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     (d) Other Stock-Based Awards. The Committee shall have authority to determine the
Participants who shall receive an “Other Stock-Based Award,” which shall consist of a right (i)
which is other than an Award or right described in Section 6(a), (b), or (c) above and (ii) which
is denominated or payable in, valued in whole or in part or by reference to, or otherwise based on
or related to, Shares (including, without limitation, securities convertible into Shares), deemed
by the Committee to be consistent with the purposes of the Plan; provided, that any such right must
comply, to the extent deemed desirable by the Committee, with Rule 16b-3, and provided, further,
that any such right must not result in taxes, additional interest and/or penalties pursuant to
Section 409A of the Code. Without limiting the generality of the preceding sentence, if any Other
Stock-Based Award is subject to Section 409A of the Code, any payment or benefits otherwise due
thereunder to any Participant upon the Participant’s termination of employment or consultancy or
other service with the Company shall not be made until and unless such termination constitutes a
“separation from service,” as such term is defined under Section 409A of the Code, and if at the
time of such separation from service with the Company the Participant is a “specified employee” as
defined in Section 409A of the Code and the deferral of the commencement of any payments or
benefits otherwise payable thereunder as a result of such separation from service is necessary in
order to prevent any accelerated or additional tax under Section 409A of the Code, then the Company
will defer the commencement of the payment of any such payments or benefits thereunder (without any
reduction in such payments or benefits ultimately paid or provided to the Participant) until the
date that is six months following the Participant’s separation from service with the Company (or
the earliest date permitted under Section 409A of the Code). Subject to the terms of the Plan and
any applicable Award Agreement, the Committee shall determine the terms and conditions of any such
other Stock-Based Award, including Performance Goals and performance periods. Except in the case of
an Other Stock-Based Award that is an Alternative Award and subject to Section 6(e)(viii), the
price at which securities may be purchased pursuant to any Other Stock-Based Award granted under
this Plan, or the provision, if any, of any such Award that is analogous to the purchase or
exercise price, shall not be less than 100% of the Fair Market Value of the security to which such
Award relates on the date of the grant.



     (e) General.




     (i) Awards May Be Granted Separately or Together. Awards may, in the
discretion of the Committee, be granted either alone or in addition to, in tandem with, or
in substitution for, any other Award granted under the Plan. Awards granted in addition to,
or in tandem with, other Awards may be granted either at the same time as, or at a different
time from, the grant of such other Awards.




     (ii) Forms of Payment by Company Under Awards. Subject to the terms of the
Plan and of any applicable Award Agreement, payments or transfers to be made by the Company
or an Affiliate upon the grant, exercise or payment of an Award may be made in such form or
forms as the Committee shall determine, including, without limitation, cash, Shares, other
securities, other Awards or other property, or any combination thereof, and may be made in a
single payment or transfer, in installments, or on a deferred basis, in each case in
accordance with rules and procedures established by the Committee.



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     (iii) Limits on Transfer of Awards. Awards (other than Incentive Stock
Options) shall be transferable to the extent provided in any Award Agreement. Incentive
Stock Options may not be sold, pledged, assigned, hypothecated, transferred or disposed if
in any manner other than by will or by the laws of descent or distribution and may be
exercised, during the lifetime of the Participant, only by the Participant; provided,
however, that the Participant may designate a beneficiary of the Participant’s Incentive
Stock Option in the event of the Participant’s death on a beneficiary designation form
provide by the Company.




     (iv) Term of Awards. The term of each Award shall be for such period as may be
determined by the Committee; provided, that in no event shall the term of any Option exceed
a period of ten years from the date of its grant.




     (v) Share Certificates. All certificates for Shares or other securities of the
Company or any Affiliate delivered under the Plan pursuant to any Award, or the exercise
thereof, shall be subject to such stop transfer orders and other restrictions as the
Committee may deem advisable under the Plan or the rules, regulations, and other
requirements of the SEC, any stock exchange upon which such Shares or other securities are
then listed, and any applicable Federal or state laws, and the Committee may cause a legend
or legends to be put on any such certificates to make appropriate reference to such
restrictions. The Committee may require that, during the Restricted Period, a certificate
for Shares of Restricted Stock registered in the name of a Participant shall be deposited by
such Participant, together with a stock power endorsed in blank, with the Company.




     (vi) Consideration for Grants. Awards may be granted for no cash consideration
or for such minimal cash consideration as may be required by applicable law.




     (vii) Delivery of Shares or Other Securities and Payment by Participant of
Consideration. No Shares or other securities shall be delivered pursuant to any Award
until payment in full or any amount required to be paid pursuant to the Plan or the
applicable Award Agreement is, or is arranged to be, received by the Company. Such payment
may be made by such method or methods and in such form or forms as the Committee shall
determine, including, without limitation, cash, Shares, other securities, other Awards or
other property, or any combination thereof; provided that the combined value, as determined
by the Committee, of all cash and cash equivalents and the Fair Market Value of any such
Shares or other property so tendered, or arranged to be tendered, to the Company, as of the
date of such tender, is at least equal to the full amount required to be paid pursuant to
the Plan or the applicable Award Agreement to the Company.




     (viii) Prohibition on Repricing. Notwithstanding any other provision of this
Plan, in no event may the exercise price under any Option be reduced, other than pursuant to
an adjustment contemplated in Section 4(c), after it is granted, either directly or by
cancellation of an outstanding option in return for a newly granted option or other Award
(including an Alternative Award) that has the effect of lowering the exercise price of the
option.



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     SECTION 7. Amendment And Termination. Except to the extent prohibited by applicable
law and unless otherwise expressly provided in an Award Agreement or in the Plan:



     (a) Amendments to the Plan. The Board may amend, alter, suspend, discontinue, or
terminate the Plan at any time without the consent of any shareholder, Participant, other holder or
beneficiary of an Award, or other Person; provided that notwithstanding any other provision of the
Plan or any Award agreement, no such amendment, alteration, suspension, discontinuation, or
termination shall be made without shareholder approval if such approval is necessary to comply
with, or to obtain exemptive relief under, any tax or regulatory requirement that the Board deems
desirable to comply with, or obtain exemptive relief under, including for these purposes any
approval requirement which is a prerequisite for exemptive relief from Section 16(b) of the
Exchange Act. Notwithstanding anything to the contrary herein, the Committee may amend the Plan in
such a manner as may be necessary so as to have the Plan conform with local rules and regulations
in any jurisdiction outside the United States.



     (b) Amendments to Awards. The Committee may waive any conditions or rights under,
amend any terms of, or accelerate or alter, any Award theretofore granted, prospectively or
retroactively, without the consent of any relevant Participant or holder or beneficiary of an
Award, provided that such action does not (i) materially impair the rights of any Participant or
holder or beneficiary of an Award without such person’s consent, or (ii) result in a decrease in
the Fair Market Value of an Award without such Participant’s or holder’s or beneficiary’s consent.
Notwithstanding anything to the contrary herein, in no event shall the Committee amend the
distribution terms in any Award or Award Agreement that has a feature for the deferral of
compensation if such amendment would result in taxes, additional interest and/or penalties pursuant
to Section 409A of the Code..



     (c) Adjustments of Awards Upon Certain Acquisitions. In the event the Company or any
Affiliate shall assume outstanding Awards or the right or obligation to make future Awards in
connection with the acquisition of another business or another corporation or business entity, the
Committee may make such adjustments, not inconsistent with the terms of the Plan, in the terms of
Awards as it shall deem appropriate in order to achieve reasonable comparability or an equitable
relationship between the assumed Awards and the Awards as so adjusted, provided, however, that such
adjustment does not result in such awards being considered new awards or modifications of such
awards for purposes of Section 409A of the Code..



     (d) Adjustment of Awards Upon the Occurrence of Certain Unusual or Nonrecurring
Events. The Committee is hereby authorized to make adjustments in the terms and conditions of,
and the criteria included in, Awards in recognition of unusual or nonrecurring events (including,
without limitation, the events described in Section 4(c) hereof) affecting the Company, an
Affiliate, or the financial statements of the Company or any Affiliate, or of changes in applicable
laws, regulations, or accounting principles, whenever the Committee determines that such
adjustments are appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, provided, however, that such
adjustment does not result in taxes, additional interest and/or penalties pursuant to Section 409A
of the Code..



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     (e) Correction of Defects, Omissions and Inconsistencies. The Committee may correct
any defect, supply any omission, or reconcile any inconsistency in the Plan or any Award or Award
Agreement in the manner and to the extent it shall deem desirable to carry the Plan into effect.



     (f) Cancellation. Any provision of this Plan or any Award Agreement other than Section
6(e)(viii) hereof to the contrary notwithstanding, the Committee may cause any Award granted
hereunder to be cancelled in consideration of a cash payment or alternative award (equal to the
Fair Market Value of the Award to be cancelled) made to the holder of such cancelled Award.



     SECTION 8. General Provisions.



     (a) No Rights to Awards. No Employee, Participant or other Person shall have any claim
to be granted any Award, and there is no obligation for uniformity of treatment of Employees,
Participants, or holders or beneficiaries of Awards. The terms and conditions of Awards need not be
the same with respect to each recipient.



     (b) Delegation. Subject to the terms of the Plan and applicable law, the Committee may
delegate to one or more officers or managers of the Company or any Affiliate, or to a Committee of
such officers or managers, the authority, subject to such terms and limitations as the Committee
shall determine, to grant Awards to, or to cancel, modify or waive rights with respect to, or to
alter, discontinue, suspend, or terminate Awards held by, Employees who are not officers or
directors of the Company for purposes of Section 16 of the Exchange Act, or any successor section
thereto, or who are otherwise not subject to such section.



     (c) Withholding. A participant may be required to pay to the Company or any Affiliate,
and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any
Award, from any payment due or transfer made under any Award or under the Plan or from any
compensation or other amount owing to a Participant, the amount (in cash, Shares, other securities,
other Awards or other property) of any applicable withholding taxes in respect of an Award, its
exercise, or any payment or transfer under an Award or under the Plan and to take such other action
as any be necessary in the opinion of the Company to satisfy all obligations for the payment of
such taxes. In the case of payments of Awards in the form of Shares, at the Committee’s discretion
the Participant may be required to pay to the Employer the amount of any taxes required to be
withheld with respect to such Shares or, in lieu thereof, the Employer shall have the right to
retain (or the Participant may be offered the opportunity to elect to tender) the number of Shares
whose Fair Market Value equals the amount required to be withheld. The Committee may provide for
additional cash payments to holders of Awards to defray or offset any tax arising from the grant,
vesting, exercise or payments of any Award. In the discretion of the Committee, and subject to
applicable law, the Company may offer loans to Participants to satisfy withholding requirements on
such terms as the Committee may determine, which terms may in the discretion of the Committee be
non-interest bearing. Other provisions of the Plan notwithstanding, only the minimum amount of
Shares deliverable in connection with an Award necessary to satisfy statutory withholding
requirements will be withheld, unless withholding of any additional amount of Shares will not
result in additional accounting expense to the Company.



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     (d) Award Agreements. Each Award hereunder shall be evidenced by an Award Agreement,
which shall be delivered to the Participant and shall specify the terms and conditions of the Award
and any rules applicable thereto, including but not limited to the effect on such Award of the
death, retirement or other termination of employment or service of a Participant and the effect, if
any, of a change in control of the Company.



     (e) No Limit on Other Compensation Arrangements. Nothing contained in the Plan shall
prevent the Company or any Affiliate from adopting or continuing in effect other compensation
arrangements, which may (but need not) provide for the grant of options, restricted stock and other
types of security-based awards provided for hereunder (subject to shareholder approval if such
approval is required), and such arrangements may be either generally applicable or applicable only
in specific cases.



     (f) No Right to Employment. The grant of an Award shall not be construed as giving a
Participant the right to be retained in the employ of the Company or any Affiliate. Further, the
Company or an Affiliate may at any time dismiss a Participant from employment, free from any
liability or any claim under the Plan, except to the extent expressly provided otherwise in the
Plan or in any Award Agreement.



     (g) No Rights as Stockholder. Subject to the provisions of the applicable Award
Agreement, no Participant or holder or beneficiary of any Award shall have any rights as a
stockholder with respect to any Shares to be distributed under the Plan until he or she has become
the holder of such Shares. Notwithstanding the foregoing, in connection with each grant of
Restricted Stock hereunder, the applicable Award shall specify if, and to what extent, the
Participant shall not be entitled to the rights of a stockholder in respect of such Restricted
Stock.



     (h) Governing Law. The validity, construction, and effect of the Plan and any rules
and regulations relating to the Plan and any Award Agreement shall be determined in accordance with
the laws of the State of Delaware and applicable Federal law.



     (i) Severability. If any provision of the Plan or any Award is or becomes or is deemed
to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would
disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to applicable laws, or if it cannot be construed or
deemed amended without, in the determination of the Committee, materially altering the intent of
the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award
and the remainder of the Plan and any such Award shall remain in full force and effect.



     (j) Other Laws. The Committee may refuse to issue or transfer any Shares or other
consideration under an Award if it determines that the issuance or transfer of such Shares or such
other consideration might violate any applicable law or regulation or entitle the Company to
recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the Company
by a Participant, other holder or beneficiary in connection with the exercise of such Award shall
be promptly refunded to the relevant Participant, holder or beneficiary. Without limiting the
generality of the foregoing, no Award granted hereunder shall be construed as an offer to sell
securities of the Company, and no such offer shall be outstanding, unless and until
the Committee has determined that any such offer, if made, would be in compliance with all
applicable requirements of Federal securities laws.



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     (k) No Trust or Fund Created. Neither the Plan nor any Award shall create or be
construed to create a trust or separate fund of any kind or a fiduciary relationship between the
Company or any Affiliate and a Participant or any other Person. To the extent that any Person
acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such
right shall be no greater than the right of any unsecured general creditor of the Company or any
Affiliate.



     (l) No Fractional Shares. No fractional Shares shall be issued or delivered pursuant
to the Plan or any Award, and the Committee shall determine whether cash, other securities, or
other property shall be paid or transferred in lieu of any fractional Shares or whether such
fractional Shares or any rights thereto shall be cancelled, terminated, or otherwise eliminated.



     (m) Headings. Headings are given to the sections and subsections of the Plan solely as
a convenience to facilitate reference. Such headings shall not be deemed in any way material or
relevant to the construction or interpretation of the Plan or any provision thereof.



     SECTION 9. Effective Date Of The Plan. The Plan was effective as of April 29, 2004
(the date of its approval by the shareholders of the Company).



     SECTION 10. Term Of The Plan. No Award shall be granted under the Plan after the tenth
anniversary of the effective date of the Plan. Unless otherwise expressly provided in the Plan or
in an applicable Award Agreement, and Award theretofore granted may, and the authority of the Board
or the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to
waive any conditions or rights under any such Award shall, extend beyond such date.




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